California Supreme Court
WILLIAMS v. SUPERIOR COURT
The California Supreme Court held that a party seeking discovery of private information need not always establish a compelling interest or compelling need; disapproving Digital Music News LLC v. Superior Court, 226 Cal.App.4th 216, 171 Cal.Rptr.3d 799, Life Technologies Corp. v. Superior Court, 197 Cal.App.4th 640, 130 Cal.Rptr.3d 80, Binder v. Superior Court, 196 Cal.App.3d 893, 242 Cal.Rptr. 231, Kahn v. Superior Court, 188 Cal.App.3d 752, 233 Cal.Rptr. 662, Moskowitz v. Superior Court, 137 Cal.App.3d 313, 187 Cal.Rptr. 4, Board of Trustees v. Superior Court, 119 Cal.App.3d 516, 174 Cal.Rptr. 160, and Board of Medical Quality Assurance v. Gherardini, 93 Cal.App.3d 669, 156 Cal.Rptr. 55.
“This is a representative action seeking civil penalties on behalf of the State of California and aggrieved employees statewide for alleged wage and hour violations. (See Lab. Code, § 2698 et seq., the Labor Code Private Attorneys General Act of 2004, hereafter PAGA.) In the course of discovery, plaintiff Michael Williams sought contact information for fellow California employees. When the defendant employer, Marshalls of CA, LLC, resisted, Williams filed a motion to compel. The trial court granted the motion as to the store where Williams worked, but denied it as to every other California store, conditioning any renewed motion for discovery on Williams sitting for a deposition and showing some merit to the underlying action. Williams petitioned the Court of Appeal to compel the trial court to vacate its discovery order. The Court of Appeal denied the writ, and we granted review to consider the scope of discovery available in PAGA actions.
In the absence of privilege, the right to discovery in this state is a broad one, to be construed liberally so that parties may ascertain the strength of their case and at trial the truth may be determined. Our prior decisions and those of the Courts of Appeal firmly establish that in non-PAGA class actions, the contact information of those a plaintiff purports to represent is routinely discoverable as an essential prerequisite to effectively seeking group relief, without any requirement that the plaintiff first show good cause. Nothing in the characteristics of a PAGA suit, essentially a qui tam action filed on behalf of the state to assist it with labor law enforcement, affords a basis for restricting discovery more narrowly. Nor, on this record, do other objections interposed in the trial court support the trial court’s order. We reverse.”
Capstone Law, Glenn A. Danas, Ryan Wu, Robert Drexler, Stan Karas and Liana Carter, Los Angeles, for Petitioner.
Cohelan Khoury & Singer and Michael D. Singer, San Diego, for California Employment Lawyers Association as Amicus Curiae on behalf of Petitioner.
Cynthia Rice, Oakland, for California Rural Legal Assistance, Inc., California Rural Legal Assistance Foundation, Legal Aid Society-Employment Law Center and National Employment Law Project as Amici Curiae on behalf of Petitioner.
The Turley Law Firm, William Turley, David T. Mara and Jamie Serb, San Diego, for Consumer Attorneys of California as Amicus Curiae on behalf of Petitioner.
No appearance for Respondent.
Littler Mendelson, Robert G. Hulteng, San Francisco, Amy Todd-Gher, Kyle W. Nageotte, San Diego, Joshua J. Cliffe, Emily E. O’Connor, San Francisco, and Scott D. Helsinger for Real Party in Interest.
Shook, Hardy & Bacon, Phil Goldberg, Christopher E. Appel and Patrick Gregory for National Association of Manufacturers, American Coatings Association and NFIB Small Business Legal Center as Amici Curiae on behalf of Real Party in Interest.
Call & Jensen, Julie R. Trotter, Newport Beach, Jamin S. Soderstrom and Delavan J. Dickson, San Diego, for Retail Litigation Center, Inc., California Retailers Association and California Grocers Association as Amici Curiae on behalf of Real Party in Interest.
Jackson Lewis, Lisa Barnett Sween, San Francisco, Natalja M. Fulton, Dylan B. Carp and Douglas G.A. Johnston, San Francisco, for Prometheus Real Estate Group, Inc., as Amicus Curiae on behalf of Real Party in Interest.
Pahl & McCay, Stephen D. Pahl, Karen Kubala McCay, San Jose, and Julie Bonnel-Rogers, Irvine, for California Apartment Association as Amicus Curiae on behalf of Real Party in Interest.
O’Melveny & Myers, Apalla U. Chopra, Los Angeles, Adam J. Karr, Ryan W. Rutledge, Newport Beach, Andrew Lichtenstein and Christina N. Pacudan, Los Angeles, for The Employers Group as Amicus Curiae on behalf of Real Party in Interest.
Haynes and Boone, Mary-Christine Sungaila and Martin M. Ellison, Costa Mesa, for International Association of Defense Counsel as Amici Curiae on behalf of Real Party in Interest.
Cal., 7/3/17 unanimous opinion by Werdegar; ___ P.3d ___, 3 Cal.5th 531, 2017 WL 2980258, 27 Wage & Hour Cas.2d (BNA) 687, 17 Cal. Daily Op. Serv. 6837, 2017 Daily Journal D.A.R. 6879.
California Courts of Appeal
BONNI v. ST. JOSEPH HEALTH SYSTEM
“Plaintiff Aram Bonni, a surgeon, sued St. Joseph Hospital of Orange (St. Joseph), Mission Hospital Regional Medical Center (Mission), and other defendants for, inter alia, retaliation under Health and Safety Code, section 1278.5 (the whistleblower statute). Plaintiff alleged defendants retaliated against him for his whistleblower complaints by summarily suspending his medical staff privileges and conducting hospital peer review proceedings.
In response to plaintiff’s filing of his first amended complaint (FAC), defendants filed a special motion under Code of Civil Procedure section 425.16 (the anti-SLAPP statute) to strike plaintiff’s retaliation cause of action, asserting his claim arose from the protected activity of hospital peer review proceedings.
The court granted defendants’ anti-SLAPP motion as to both St. Joseph and Mission. The court determined, first, that defendants had met prong one of the anti-SLAPP statute’s two-part test, which requires a moving defendant to show the plaintiff’s claim arose from activity protected under that statute. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67, 124 Cal.Rptr.2d 507, 52 P.3d 685 (Equilon).)
The court then proceeded to prong two of the anti-SLAPP test, which requires a plaintiff to show a probability of prevailing on his or her claim. (Equilon, supra, 29 Cal.4th at p. 67, 124 Cal.Rptr.2d 507, 52 P.3d 685.) The court concluded plaintiff’s proof failed as to both defendants.
We conclude plaintiff’s retaliation claim under the whistleblower statute arose from defendants’ alleged acts of retaliation against plaintiff because he complained about the robotic surgery facilities at the hospitals, and not from any written or oral statements made during the peer review process or otherwise. Discrimination and retaliation claims are rarely, if ever, good candidates for the filing of an anti-SLAPP motion. This case is no exception. Accordingly, defendants’ motion to strike fails on prong one of the anti-SLAPP test and we reverse the order granting defendants’ motion.” (Emphasis added).
Greene, Broillet & Wheeler, Mark T. Quigley, Scott H. Carr, Christian T.F. Nickerson, Santa Monica; Esner, Chang & Boyer, Joseph S. Persoff, Pasadena, and Stuart B. Enser for Plaintiff and Appellant.
Arent Fox, Lowell Brown, Debra J. Albin-Riley and Diane Roldan, Los Angeles, for Defendants and Respondents.
Fourth District, Division 3, 7/26/17 decision by Ikola, O’Leary and Moore concurring; 2017 WL 3167351, 17 Cal. Daily Op. Serv. 7159.
ESPEJO v. THE COPLEY PRESS, INC.
“Defendant The Copley Press, Inc., owner of the San Diego Union–Tribune newspaper (collectively UT), appeals from a second amended and restated judgment (the judgment) after a court trial in this class action brought by and on behalf of persons whom UT formerly engaged as newspaper home delivery carriers (plaintiffs or carriers). The main issue at trial was whether the carriers were employees of UT or independent contractors. The trial court decided the carriers were employees.
UT contends (1) the plaintiff class must be decertified because the class representatives were inadequate; (2) the court committed reversible error by not limiting the trial to certified issues and by granting plaintiffs’ motion to amend their second amended complaint according to proof; (3) the class should be decertified and the judgment reversed because the court did not and could not manage individualized issues; (4) the court’s order bifurcating plaintiffs’ cause of action under Business and Professions Code section 17200 to be tried first deprived UT of its right to a jury trial; (5) the class award must be reversed because UT paid carriers enhanced compensation that reimbursed them for expenses the court awarded; (6) the amounts the court awarded were not restitution; (7) the court erred in awarding plaintiffs prejudgment interest; (8) substantial evidence does not support the court’s determination that the carriers were employees rather than independent contractors; (9) the court erred in awarding plaintiffs attorney fees under Code of Civil Procedure section 1021.5; (10) even if attorney fees could be awarded, the court erred by not substantially reducing them for limited success; and (11) the court erred by adopting plaintiffs’ lodestar amount in awarding attorney fees.
Plaintiffs appeal the portion of the judgment awarding them attorney fees, contending (1) the court abused its discretion in not awarding an enhancement of the lodestar amount of their fees; and (2) the court erred in ruling they abandoned their cause of action for damages under Labor Code section 2802 and therefore could not recover attorney fees under that statute. We affirm in part and reverse in part the judgment with directions to redetermine the class award, attorney fees, and prejudgment interest as explained below.”
The panel agreed that under the right to control test, the drivers were employees rather than independent contractors.
As to the adequacy of the class representatives, the panel found “there was no evidence of antagonism to the class suit by any class members.” Further, the panel reasoned, “A ‘class should be decertified “only where it is clear there exist changed circumstances making continued class treatment improper.” ’ ” (Kight v. CashCall, Inc. (2014) 231 Cal.App.4th 112, 125–126, 179 Cal.Rptr.3d 439.) We find no significant change in circumstances between the time the class was certified and the time of trial that would support our decertifying the class or reversing the judgment on the ground of inadequacy of the class representatives. … In the present case, there is no evidence that Valderrama or any of the other class representatives is a professional plaintiff. … Nor does the fact that Valderrama was the only class representative who testified at trial render the other representatives inadequate.” The panel concluded, “We find no basis to decertify the class or disturb the judgment on the ground the class was not adequately represented.”
“UT contends the trial resulted in abuse of the class action procedure because the court allowed plaintiffs to litigate claims that were not certified for class treatment. Plaintiffs disagree with UT’s view of the scope of the class certification order. … We disagree with UT’s interpretation of the certification order. Read in context, the order’s reference to “the Fourth cause of action—failure to pay reimbursement for auto expenses” is reasonably read as merely exemplifying that plaintiffs’ business expense claims were susceptible to proof on a classwide basis. … We find no abuse of discretion in the court’s allowing plaintiffs to litigate all of their expense reimbursement claims.”
“ … We find no abuse of discretion in the trial court’s allowing plaintiffs to amend their second amended complaint to include claims for carrier collect charges, insert charges, and warehouse rent because plaintiffs sought recovery of the carriers’ business expenses through their fourth cause of action and as restitution under their eighth cause of action, and the record shows that UT had ample notice of those specific claims and the opportunity to defend against them.”
“ … UT contends the court’s order bifurcating plaintiffs’ cause of action under section 17200 to be tried first deprived UT of its right to a jury trial. We find no error in connection with the bifurcation order and conclude UT waived the right to challenge the order and was not prejudiced by it.”
The panel rejected UT’s challenges to the class award and affirmed the court’s rejection of UT’s enhanced compensation defense.
The panel found that “the court erred in failing to take into account clearly specified credits, reversals, and payments to carriers in the business expense categories at issue in determining the amount of restitution to award plaintiffs. … In sum, plaintiffs’ award should be reduced by the amount of any documented and readily identifiable payments, credits, or reversals that the class members received in the subject expense categories. Although the court properly declined to credit UT with payment of the carrier’s business expenses through enhanced compensation because UT did not meet Gattuso’s requirements for an enhanced-compensation defense, Gattuso does not preclude UT from being credited with the credits and reversals specified on carrier invoices and other relevant documents in the calculation of plaintiffs’ monetary award.”
The panel also found that “the mileage award must be recalculated to take into account any documented credits or payments for gasoline, including any service incentive credits that UT can show were given to the carriers as compensation for gas.”
As to the insert charge issue, the panel stated, “The court’s 14 percent calculation was based on charges and credits for a single week on a single monthly invoice of a single carrier. There is no evidentiary basis for a finding that the single invoice on which the court based the award represented even a reasonable estimate of the difference between insert charges and credits for that carrier over the entire class period, let alone for the entire class. Our review of carrier invoices in the record confirms that insert credits on some invoices exceeded the amount of insert charges. Plaintiffs did not meet their burden of proving the class was entitled to a monetary recovery for insert charges.”
As to the prejudgment interest issue, the panel concluded, “We will not disturb the trial court’s decision to award prejudgment interest from January 1, 2006, although the court will have to recalculate the amount of prejudgment interest based on the redetermined amount of the class award.”
The panel relied on the following test to determine whether the court had abused its discretion regarding the award of attorney’s fees. “Section 1021.5 authorizes an award of attorney fees ‘to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest,’ provided that three additional conditions are satisfied: ‘(a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any.’34 (§ 1021.5.) All of the statutory requirements must be satisfied to justify a fee award.” (Collins, supra, 205 Cal.App.4th at p. 153, 139 Cal.Rptr.3d 880.)”
“ … Although we find no abuse of discretion in the court’s determination that the requirements of section 1021.5 to justify a fee award were satisfied, we conclude the trial court should reconsider the amount of the award in light of the possible reduction of plaintiffs’ monetary award on remand. We understand that in doing so, the court will evaluate “ ‘a number of factors, including the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circumstances in the case.’ ” (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1096, 95 Cal.Rptr.2d 198, 997 P.2d 511, italics added.) Because the degree of success plaintiffs will achieve after redetermination of their monetary award on remand may change, the court’s assessment of the degree of success achieved by plaintiffs’ counsel could also change. (Sokolow v. County of San Mateo (1989) 213 Cal.App.3d 231, 248, 261 Cal.Rptr. 520 [the degree or extent of plaintiffs’ success in obtaining the results they sought must be taken into consideration in determining the reasonable amount of their attorney fee award].) In addition, plaintiffs are entitled to an award of attorney fees incurred on appeal. (Protective League, supra, 188 Cal.App.3d at p. 17, 232 Cal.Rptr. 697.)”
The panel also found, “The court’s attorney fee order does not reflect that the court applied the Hensley two-step inquiry or otherwise considered plaintiffs’ limited success in determining the amount of their fee award. Consequently, in redetermining the amount of the fee award in light of plaintiffs’ reduced monetary recovery, the court should also consider whether the award should be reduced by the amount of any fees that were attributable to unsuccessful claims that were unrelated to successful claims.”
The panel affirmed the denial of an enhancement to the lodestar award.
The panel concluded, “The portions of the judgment awarding the class members the principal sum of $3,188,445 plus prejudgment interest and attorney fees in the amount of $6,160,416 are reversed and the matter is remanded. The court is directed to redetermine the amount of the class award and prejudgment interest consistent with the views expressed in this opinion, including reducing the award by the amount of any documented and readily identifiable payments, credits, or reversals in the subject expense categories that UT is able to show the class members received, and disallowing recovery for insert credits. The court is further directed to redetermine attorney fees consistent with the views expressed in this opinion, taking into consideration any reductions in the class monetary recovery on remand and whether the fee award should be reduced by the amount of any fees that were attributable to unsuccessful claims that were unrelated to successful claims. In all other respects, the judgment is affirmed. Plaintiffs are awarded their costs on appeal.”
Cooley, Steven M. Strauss, San Diego, Seth A. Rafkin, Summer J. Wynn and Heather C. Meservy for Defendant and Appellant.
Callahan & Blaine, Daniel J. Callahan, Michael J. Sachs, Jill A. Thomas, Santa Ana, and Scott D. Nelson; Cadena Churchill and Raul Cadena, San Diego, for Plaintiffs and Appellants.
Fourth District, Division 1, 7/7/17 decision by McConnell, Haller and Dato concurring; ___ Cal.Rptr.3d ___, 2017 WL 2889186, 17 Cal. Daily Op. Serv. 6703.
KIZER v. TRISTAR RISK MANAGEMENT
“Plaintiffs and appellants Valerie Kizer and Sharal Williams (collectively, Plaintiffs) filed this putative class action against their former employer, defendant and respondent Tristar Risk Management (Tristar), alleging Tristar failed to pay Plaintiffs and its other claims examiners overtime compensation because it misclassified them as exempt from California’s overtime laws.
After twice continuing the hearing for supplemental briefing and evidence, the trial court denied Plaintiffs’ class certification motion because they failed to present substantial evidence showing their claims were typical of the proposed class and common issues of law or fact predominated. The court found Tristar’s alleged misclassification of the proposed class members suitable for class treatment, but it denied the motion because misclassification does not give rise to liability on an overtime claim unless the employees first show they worked hours or days that required overtime compensation. The court explained Plaintiffs failed to present evidence showing Tristar had a generally applicable policy or practice that required employees to work overtime, and therefore Plaintiffs failed to show they could establish Tristar’s liability based on proof common to all class members. Consequently, the court concluded class treatment of Plaintiffs’ claims was not appropriate.
Plaintiffs contend the trial court erred because the amount of overtime worked by the individual class members is a damages issue, and the need for individual proof of damages is not a proper basis for denying class certification. Plaintiffs, however, misconstrue the governing legal standards and the basis for the court’s ruling.
The trial court did not deny the motion based on Plaintiffs’ failure to show the amount of overtime worked by each putative class member. Rather, the court denied the motion because Plaintiffs failed to show whether the putative class members worked any overtime at all was subject to common proof. To satisfy the commonality requirement for class certification, Plaintiffs were required to show they could establish their liability theory on a classwide basis through common proof. Typically, in overtime claims, plaintiffs show this by presenting evidence of an employer policy or practice that generally required the class members to work overtime. Plaintiffs presented no evidence of any such policy or practice.
Plaintiffs also contend the trial court erred in refusing class certification on their claim under California’s unfair competition law (UCL; Bus. & Prof. Code, § 17200 et seq.). According to Plaintiffs, the UCL authorizes restitution and other relief without a showing that each class member individually suffered injury, and therefore Plaintiffs were not required to present evidence of the overtime amount each putative class member worked. Plaintiffs again misconstrue the governing law. The cases Plaintiffs cite address standing to bring a UCL claim; they do not address the showing required to obtain class certification. As explained below, the governing case law makes clear that, aside from standing, a plaintiff seeking class certification on a UCL claim still must establish common issues of law or fact predominate, the representative’s claim is typical of the class, and all other elements required for class certification. Because substantial evidence supports the court’s decision Plaintiffs failed to make that showing, we affirm the court’s decision to deny class certification.”
Blumenthal, Nordrehaug & Bhowmik, Norman B. Blumenthal, San Diego, and Kyle R. Nordrehaug for Plaintiffs and Appellants.
Seyfarth Shaw, Jon D. Meer, Sheryl L. Skibbe and Leo Q. Li, Los Angeles, for Defendant and Respondent.
Fourth District, Division 3, 6/26/17 decision by Aronson, Bedworth and Thomas concurring, as modified 7/26/17; ___ Cal.Rptr.3d ___, 2017 WL 3172823, 2017 Wage & Hour Cas.2d (BNA) 219,675, 17 Cal. Daily Op. Serv. 7164.
MINNICK v. AUTOMOTIVE CREATIONS, INC.
“Nathan Minnick sued his former joint employers, Automobile Creations, Inc. and Dynamic Auto Images, Inc. (defendants), alleging their vacation policy violated state law because it required employees who worked for less than one year to forfeit vested vacation pay. Minnick brought the action individually and on behalf of all similarly situated employees, and sought penalties under California’s Labor Code Private Attorney General Act of 2004 (PAGA) (Lab. Code, § 2698 et seq.).
The court sustained defendants’ demurrer without leave to amend on Minnick’s second amended complaint. We affirm. Defendants’ vacation policy lawfully provided that employees do not begin to earn vacation time until after their first year. Because Minnick’s employment ended during his first year, he did not have any vested or accrued vacation pay. Thus, he was not owed any vacation wages. (See Owen v. Macy’s, Inc. (2009) 175 Cal.App.4th 462, 96 Cal.Rptr.3d 70 (Owen ).)”
Law Offices of Kenneth A. Goldman and Kenneth Alan Goldman, Sherman Oaks; Law Offices of Ari Moss and Ari Emanuel Moss, Sherman Oaks; Law Offices of Zorik Mooradian and Zorik Mooradian, Calabasas, for Plaintiff and Appellant.
Slattery Sobel & Decamp, J.L. Sean Slattery and Azar M. Khazian, San Diego; Law Office of David P. Hall and David P. Hall for Defendants and Respondents.
Fourth District, Division 1, 7/28/17 decision by Haller, McConnell and Nares concurring; ___ Cal.Rptr.3d ___, 2017 WL 3203265, 17 Cal. Daily Op. Serv. 7314.
SANTA ANA POLICE OFFICERS ASSOC. v. CITY OF SANTA ANA
“Two City of Santa Ana Police officers (Doe Officer 1 and Doe Officer 2) were the subjects of an internal affairs investigation based on their conduct during the execution of a search warrant at a marijuana dispensary. The Santa Ana Police Department initiated the investigation after video recordings of the officers were released to the media. The video recordings were made by the dispensary owners without the knowledge of the officers, who had removed all known recording devices before executing the warrant.
Plaintiffs Santa Ana Police Officers Association (SAPOA), Doe Officer 1, and Doe Officer 2 (collectively referred to as Plaintiffs) brought this lawsuit against the City of Santa Ana, the Santa Ana Police Department, and the Santa Ana Chief of Police (collectively referred to as Defendants) and asserted two causes of action arising out of the investigation. In the first cause of action, Plaintiffs alleged that Defendants violated the California Invasion of Privacy Act, Penal Code section 630 et seq., by using the video recordings made at the marijuana dispensary as the basis for, and as evidence in, the internal affairs investigation. In the second cause of action, Plaintiffs alleged that Defendants violated Government Code section 3303, subdivision (g) (section 3303(g)), part of the Public Safety Officers Bill of Rights Act, Government Code section 3300 et seq., by refusing to produce tape recordings of the initial interrogations of the officers, transcribed stenographer notes, and any reports or complaints made by the investigators or other persons, before interrogating the officers a second time.
The trial court sustained, without leave to amend, Defendants demurrer to the first amended complaint (the Complaint). Plaintiffs appealed that decision. We affirm the judgment as to the first cause of action and reverse as to the second cause of action.
We conclude the Complaint does not, and cannot, state a violation of the California Invasion of Privacy Act because Doe Officer 1 and Doe Officer 2 had no reasonable expectation as a matter of law that their communications during the raid of the marijuana dispensary were not being overheard, watched, or recorded. We also conclude, however, the second cause of action states a cause of action for violation of the Public Safety Officers Bill of Rights Act because, under section 3303(g), Defendants were required to produce the tape recordings of the initial interrogations, transcribed stenographer notes, and reports and complaints made by the investigators or other persons, before Doe Officer 1 and Doe Officer 2 were interrogated a second time.”
Corey W. Glave for Plaintiffs and Appellants.
Ferguson, Praet & Sherman, G. Craig Smith, Santa Ana, and Anthony M. Snodgrass for Defendants and Respondents.
Fourth District, Division 3, 6/13/17 decision by Fybel, O’Leary and Thompson concurring, as modified 7/12/17; 13 Cal.App.5th 317, 219 Cal.Rptr.3d 919, 17 Cal. Daily Op. Serv. 6858, 2017 Daily Journal D.A.R. 6741.
Ninth Circuit
FULLER v. IDAHO DEPARTMENT OF CORRECTIONS
“Cynthia Fuller was raped by an Idaho Department of Corrections (“IDOC”) co-worker. Before that sexual assault, the IDOC had placed the co-worker, whose conduct had been the subject of several complaints by female employees, on administrative leave because he was under criminal investigation for another rape. Shortly before Fuller was raped, a supervisor told employees (including Fuller) that the agency “looked forward” to the co-worker’s prompt return from leave. One day after Fuller reported the rape, a supervisor told her that the rapist “had a history of this kind of behavior.” Nonetheless, the supervisor sent an e-mail to all agency employees the very next day, telling them to “feel free” to contact the rapist and “give him some encouragement.” When Fuller asked for paid administrative leave to deal with problems caused by the rape, she was told that her case was not “unusual” enough to warrant that treatment; the rapist, however, was provided paid leave.
The district court granted summary judgment to the IDOC on Fuller’s hostile work environment claim. We hold that Fuller proffered sufficient admissible evidence to avoid summary judgment, and we remand for a trial on her hostile work environment claim.”
Kathryn K. Harstad (argued) and Erika Birch, Strindberg & Scholnick LLC, Boise, Idaho, for Plaintiff-Appellant.
Phillip J. Collaer (argued) and Tracy J. Crane, Anderson Julian & Hull LLP, Boise, Idaho, for Defendants-Appellees.
Ninth Circuit, 7/31/17 decision by Hurwitz, Graber concurring and Ikuta dissenting; F.3d —-, 2017 WL 3223005, 17 Cal. Daily Op. Serv. 7357.
LEHMAN v. NELSON
“In May 2008, the Trustees of the IBEW Pacific Coast Pension Fund learned that the Fund would soon enter “critical status” under the Pension Protection Act of 2006. In response, the Trustees amended the Pacific Coast Fund Pension Plan twice—in Amendments 14 and 24—and began withholding at least $1.00 per hour from all employer contributions to improve the Plan’s funding status. Richard Lehman filed a putative class action against the Trustees under the Employee Retirement Income Security Act of 1974 (ERISA). Lehman alleged that the Trustees breached the Pension Plan’s terms, violated ERISA sections 204 and 305, and breached their fiduciary duties by withholding $1.00 per hour from his employer contributions without providing an accrued benefit.
The district court granted Lehman’s motion for summary judgment, in part, and ruled that he was entitled to the withheld contributions under the terms of the Pension Plan. After the parties stipulated to a class definition, the district court certified the class and awarded damages, attorneys’ fees, and costs to the plaintiffs. The Trustees appeal the summary judgment order, an order granting the plaintiffs’ motion to enforce or clarify the order, and the damages award. The plaintiffs cross-appeal, seeking alternative relief under ERISA sections 502(a)(2) and (a)(3) if the court reverses the district court’s grant of summary judgment under ERISA section 502(a)(1)(B). The plaintiffs also appeal the district court’s determination of a reasonable hourly rate for the attorneys’ fees award. We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part, reverse in part, and remand.”
The panel concluded, “We vacate the damages award for withholdings under Amendment 24’s formal Rehabilitation Plan because the complaints did not provide adequate notice to the Trustees that Amendment 24 was at issue. We affirm: (1) the district court’s ruling that the Trustees abused their discretion by interpreting Amendment 14 to conflict with Article 5 of the Pension Plan; (2) the award of damages for the $1.00 hourly withholding in Amendment 14 pursuant to ERISA section 502(a)(1)(B); and (3) the district court’s ruling that the plaintiffs have the right to enforce the Pension Plan’s terms, including the provisions that incorporate the Reciprocal Agreement. We decline to reach the issues on cross-appeal, vacate the attorneys’ fees award, and remand for further proceedings consistent with this opinion.”
Seth Floyd (argued), Nathan R. Ring, and Michael A. Urban, The Urban Law Firm, Las Vegas, Nevada, for Defendants-Appellants/Defendants-Appellees/Cross-Appellants Warner Nelson, et al.
Richard J. Birmingham (argued), Christine Hawkins, and Joseph P. Hoag, Davis Wright Tremaine, Seattle, Washington, for Plaintiff-Appellee/Cross-Appellant/Plaintiff-Appellant Richard Lehman.
Ninth Circuit, 7/14/17 decision by Christen, Nelson and Smith concurring; 862 F.3d 1203, 17 Cal. Daily Op. Serv. 6898, 2017 Daily Journal D.A.R. 6909.
MCKEEN-CHAPLIN v. PROVIDENT SAVINGS BANK, FSB
“This appeal presents the question of whether a class of mortgage underwriters are entitled to overtime compensation under the Fair Labor Standards Act (“FLSA” or “the Act”), 29 U.S.C. § 201 et seq., for hours worked in excess of forty per week. We conclude that, because the mortgage underwriters’ primary job duty does not relate to the bank’s management or general business operations, the administrative employee exemption under 29 U.S.C. § 213(a)(1) and 29 C.F.R. § 541.200(a) does not apply, and the underwriters are entitled to overtime compensation.”
Matthew C. Helland (argued) and Daniel S. Brome, Nichols Kaster LLP, San Francisco, California; for Plaintiff-Appellant.
Michael L. Ludwig (argued), Howard M. Knee (argued), and Caitlin Sanders, Blank Rome LLP, Los Angeles, California, for Defendant-Appellee.
Ninth Circuit, 7/5/17 decision by Thomas, Murguia and Baylson concurring; 862 F.3d 847, 27 Wage & Hour Cas.2d (BNA) 653, 17 Cal. Daily Op. Serv. 6560, 2017 Daily Journal D.A.R. 6619.